From Virginia Lawyers Weekly:
Brownlee also set himself apart from the other candidates with a comment about how he would judge the constitutionality of a law passed by the General Assembly. While Cuccinelli and Foster pledged to apply a strict constitutional test, without regard to personal feeling, Brownlee said he would add a “moral test” to the equation.
“As attorney general, I would represent the people of the Commonwealth of Virginia. So I would add that second layer, that second tier,” he said.
Brownlee’s moral filter is “an entirely new conception of the AG’s role in Virginia” commented Virginia Commonwealth University political science professor Robert Holsworth on his blog, Virginia Tomorrow. Holsworth, who attended the debate, suggested that Brownlee’s comment leaves him open to criticism often aimed at liberals – that he would impose personal views in place of a strict interpretation of constitutional language. ((Peter Vieth. “Three GOP candidates for Virginia AG spar in Roanoke.” Virginia Lawyers Weekly. 23 Feb. 2009. LexisNexis.))
If Brownlee attends to represent the people of Virginia then he will do his job as Attorney General if elected, not the job of the General Assembly or the Governor. He is not running for a position in the General Assembly, he’s running for the job of running — in former Attorney General, and Republican candidate for Governor Bob McDonnell’s words — the state’s “law firm”. ((“Role of the Office of the Attorney General.” Attorney General of Virginia. 6 Apr. 2009 <http://www.oag.state.va.us/OUR_OFFICE/Role.html>.)) The point of a law firm is to zealously represent your client, in this case, the state of Virginia.
And speaking of Bob McDonnell: I’ve never been a big fan of McDonnell, especially with his involvement with HB3202 and its unconstitutional, unelected, regional taxing districts and “abusive driver fees”. But the one thing that really annoyed me was when one blog (might have been Not Larry Sabato) was asking why Attorney General Bob McDonnell continued to support both the regional taxing districts and “abusive driver fees” to court challenges. Uh…maybe because it’s his job?
And how do you know, in advance, on what side of an issue Brownlee’s “moral test” will fall on? Imagine this scenario: The General Assembly passes a law prohibiting abortion in all cases, with an exception for the mother’s health; no exceptions for rape or incest. Brownlee supports rape and incest exceptions to a ban on abortion, would he override the will of the legislature and not support and advocate the constitutionally of the bill because it doesn’t pass his “moral test”?
Another question, what politicians are the closest to the people that they are supposed to be representing? A member of the executive branch? Not really. How often does the Governor, Lieutenant Governor, or Attorney General send out constituent surveys to all 7,700,000 of their constituents? Not bloody often. Delegates and Senators on the other hand, with Delegates representing around 71,000 people, and Senators representing around 177,000 people, are a lot closer to the people than the AG. Not to mention that Delegates are up for election every two years. The Attorney General? Every four.
For years, conservatives thought that if you control the legislature, you could pass bills that as long as they were not unconstitutional, the courts wouldn’t have a problem with it. So, for years, conservatives ran campaigns about what type of legislation they would support if elected. Then the courts came along and decided to take over control of legislation and ignore previous court precedents, use international law, or just make stuff up if the judge disagreed personally with the legislation that had been voted on and approved by the public’s elected representatives.
And I’m not just talking about abortion in Roe v. Wade, you have the Supreme Court of the United States (SCOTUS) overturning decades of precedent and ruling that there’s a constitutional right to same-sex sodomy in Lawrence v. Texas and ruling that juveniles couldn’t be executed in Roper v. Simmons. In both Lawrence and Roper, you also had the SCOTUS citing international law.
Then conservatives realized, “Oh look, let’s focus on getting judges appointed to the bench!” So, after years of trying to get that accomplished, now we have someone that claims to be a conservative running for an office in the executive branch, whose job it will be to defend the constitutionality of bills passed by the legislature, talking about imposing a “moral test” on legislation. So, not only do conservatives have to get conservatives elected to the legislature, judges that won’t act in an “activist” nature, we have to worry whether a Republican Attorney General will support the legislation in court!